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Welsh Judges at the Fourth Senedd Assembly; June 2011
Welsh Judges at the Fourth Senedd Assembly; June 2011

Welsh law (Welsh: Cyfraith Cymru) is an autonomous part of the English law system[1] composed of legislation made by the Senedd.[2] Wales is part of the legal jurisdiction of England and Wales, one of the three legal jurisdictions of the United Kingdom.[3] However, due to devolution, the law in Wales is increasingly distinct from the law in England, since the Senedd, the devolved parliament of Wales, can legislate on non-reserved matters.

Welsh law has been generated by the Senedd since the Government of Wales Act 2006 and in effect since May 2007. Each piece of Welsh legislation is known as an Act of Senedd Cymru. The first Welsh legislation to be proposed was the NHS Redress (Wales) Measure 2008. This was the first time in almost 500 years that Wales has had its own laws, since Cyfraith Hywel, a version of Celtic law, was abolished and replaced by English law through the Laws in Wales Acts, enacted between 1535 and 1542 during the reign of King Henry VIII.[4]

Because Wales is not a distinct legal jurisdiction, matters of justice are reserved to Westminster.[5] There have, however, been calls for a distinct legal jurisdiction and the devolution of justice and policing to the Senedd. For example, in 2020, an independent commission led by former Lord Chief Justice John Thomas came to the conclusion that the existing arrangement was ‘failing the people of Wales’.[6]

Terminology

The law of Wales is referred to as part of the system of English law because Wales is part of the legal jurisdiction of England and Wales. The term 'English law' is preferred by the Law Society rather than 'English and Welsh law'.[2]

History of law devolution

Government of Wales Acts 1998 & 2006

Both the Government of Wales Act 1998 and the Government of Wales Act 2006 set out areas of devolved responsibility for the National Assembly for Wales (now known commonly as the Senedd). The 2006 Act granted the Senedd legislative competence to make laws (known then as Assembly Measures) in clearly defined "matters". In order to draft laws within its areas of responsibility, but where the powers of legislative competence have not been devolved to it, the Senedd could request these powers using a Legislative Competency Order or could receive the transfer of power and the right to make laws through parliamentary bills at Westminster.

Each Order in Council for an area of legislation had to be approved by the Secretary of State for Wales, both Houses of Parliament, and the Queen in Council, in order for the Senedd to legislate in that area. Once the Queen has approved the Order, the new area of legislative competence was added to Schedule 5, Part 1 of the Government of Wales Act 2006.[7] There is a Counsel General for Wales who oversees the approval and creation of these laws, and gives advice to the Welsh Government.

The 2006 Act also included provisions which allowed for a referendum to be held on whether to grant the Senedd legislative competence to pass primary legislation which were known as "Acts of the Assembly" in all matters within twenty subject areas without the need for further Legislative Competency Orders. A referendum under these provisions was held in March 2011 and resulted in a vote in favour of granting the Senedd the competence to pass the Acts of the Assembly. Therefore, the Senedd now has the legislative competence to pass an Act of Senedd Cymru in all twenty devolved areas.

Welsh devolution referendum 2011

See also: Welsh devolution referendum, 2011

The Welsh Assembly was initially able to make only Measures, but it was given the option to call for a referendum, with added approval from the UK Parliament, to pass Acts. This was considered as having the prospect of changing little of the Measures system, ensuring that Assembly Measures passed before the referendum would still be in force. It was considered that Measures would be a precursor to Acts.[citation needed]

The referendum was held on 3 March 2011. The majority of the participants voted 'Yes' to the question "Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?".

Even so, future Welsh order in council laws may face veto from the UK Parliament, but the Senedd still is able to make laws in areas already devolved because once the referendum is approved, there are powers that are already in the Government of Wales Act 2006 to make laws already approved by parliament when the act was passed. The Senedd can still request to make laws in areas using the Order in Council system but if the UK Parliament wants to legislate in a devolved area, it will require a motion to be passed by the Senedd, similar to the way the Scottish Parliament works. The power to make Acts of the Senedd are called Subjects, which are listed in schedule 7, part 1 of the Government of Wales Act 2006.[7]

Thomas Commission 2019

The Law Council of Wales was established following recommendations by the independent Commission of Justice in Wales in 2019 which set out the vision of the legal system in Wales. The commission was chaired by Lord Thomas of Cwmgiedd, former Lord Chief Justice of England and Wales.[8]

Law Council of Wales 2019

The Law Council of Wales was established for the purpose of promoting legal education, training and awareness in Welsh law. The council also supports economic development and sustainability of law in Wales.[8]

Welsh Law

Following the devolution of legislative competence to the Senedd in some area of responsibility, it is unlikely that the UK Parliament would draw up legislation in that area without a Legislative Consent Motion being passed by the Senedd to allow them to do so (Welsh Parliament Standing Order 29).[9] This is done to preserve the autonomy of the Senedd, and to prevent legislative confusion.

Devolved legislation

The Royal Badge of Wales[10]

The Senedd is able to pass laws in any area which is not explicitly reserved by Westminster, subject to a number of general restrictions (such as compatibility with the Human Rights Act).

Reserved subject areas include:[11]

Wales-only laws

There are Acts of the UK Parliament that are classed as "Wales-only laws". Each Act contains provisions using which the Senedd can make secondary legislation. Sometimes such Acts can also confer power to the Senedd. An example of such a Wales-only law is the Transport (Wales) Act 2006.[12] This Act allowed the National Assembly to make orders to enforce the provisions in the Act. The Act does not confer power to the Assembly to make Assembly Measures.

A major difference is also the use of the Welsh language, as laws concerning it apply in Wales and not in England. The Welsh Language Act 1993 is an Act of the Parliament of the United Kingdom, which put the Welsh language on an equal footing with the English language in Wales with regard to the public sector. Welsh can also be spoken in Welsh courts.

Wales as a jurisdiction

As there is no criminal law within contemporary Welsh law, Wales is not considered a fourth jurisdiction of the United Kingdom. This is because the judiciary and the courts follow England and Wales law, which is made by the United Kingdom Parliament, and is not specific to Wales. Although Welsh law is recognised as separate in operation, this is not sufficient for Wales to constitute a separate legal jurisdiction.

The One Wales agreement between Labour and Plaid Cymru (2007–2011) called for a review of criminal justice matters in Wales, and the question of whether they should be devolved to Wales, proposing that a Criminal and Youth Justice System within Welsh law.[13] Currently, however, there has been no such devolution of justice to the Senedd.[14]

A commission set up in 2017 by the First Minister of Wales known as "The Commission on Justice in Wales" and chaired by Lord Thomas of Cwmgiedd, looked into the operation of justice in the country. It aimed to further clarify the legal and political identity of Wales within the UK constitution, which may include the creation of a distinct legal jurisdiction.[15] The commission's report was released in October 2019 and recommended the full devolution of the justice system. This would formalise Wales as the fourth jurisdiction of the UK.[15]

English law in Wales

See also: English law

An introduction to Cyfraith Cymru - Welsh Law; a short video by the Welsh Government; 2015.

English law still applies to Wales under the present devolved settlement. Contemporary Welsh law governs the local aspects of Welsh life, whilst English law governs the more generic aspects. Because Welsh laws are ultimately derived from Acts of the Parliament of the United Kingdom, some commentators consider this new system of laws to be another branch of English law. Unlike Scotland, for example, which has its own criminal and civil justice system, England and Wales still have a unified justice system.

English law still applies in Wales, but some laws in England, about matters that are devolved in Wales, may not apply in Wales. Once the Senedd has legislative competency to legislate in an area through an Act of Senedd Cymru, the Senedd can lead Wales down a different route, compared to English law. Some actions can be unlawful in Wales, but not in England or Scotland. For example, using an electric shock collar on a cat or dog is unlawful in Wales, but not in the rest of the UK.[16]

Major practitioners

Wales is home to a number of solicitors' firms, barristers' chambers, and individual practitioners.

Chambers

In the Wales and Chester circuit, the leading sets are as follows:[17]

Category 1

Category 2

See also

Notes

  1. ^ The legal system in Wales is known as English law rather than English and Welsh law. See [[Welsh law#Terminolog|]].
  2. ^ a b Law Society of England and Wales (2019). England and Wales: A World Jurisdiction of Choice [Report] (Link accessed: 16 March 2022).
  3. ^ "The English legal system". ICLR. Retrieved 2022-03-16.
  4. ^ "BBC NEWS | UK | Wales | Assembly powers bill becomes law". news.bbc.co.uk. Retrieved 2016-09-19.
  5. ^ "Criminal justice and devolution". www.instituteforgovernment.org.uk. Retrieved 2022-03-16.
  6. ^ "What powers does the Senedd (Welsh Parliament) have?". Centre on Constitutional Change. University of Edinburgh. Retrieved 3 September 2021.
  7. ^ a b "Legislation.gov.uk". www.legislation.gov.uk.
  8. ^ a b "Law Council of Wales Executive Committee members announced". Legal News. 2021-10-28. Retrieved 2022-04-29.
  9. ^ "STANDING ORDER 29 - Consent in relation to UK Parliament Bills" (PDF).
  10. ^ "First Welsh law's royal approval". July 9, 2008 – via news.bbc.co.uk.
  11. ^ "Government of Wales Act 2006, Schedule 7A, Reserved Matters". Retrieved May 29, 2022.
  12. ^ "Transport (Wales) Act 2006". www.legislation.gov.uk.
  13. ^ "See Page 29" (PDF).
  14. ^ One Wales agreement
  15. ^ a b "The Commission on Justice in Wales (Thomas Commission) | Centre on Constitutional Change l Researching the issues. Informing the debate". www.centreonconstitutionalchange.ac.uk. Retrieved 2019-02-01.
  16. ^ "Electric shock dog collars banned in Wales". The Telegraph. 25 March 2010. Retrieved 19 September 2016.
  17. ^ "Regional Bar | Law firm and lawyer rankings from The Legal 500 United Kingdom - The Bar guide". www.legal500.com.

References